Micallef v Bayside Council

[2025] NSWLEC 1799

Land and Environment Court

New South Wales

Medium Neutral Citation:

Micallef v Bayside Council [2025] NSWLEC 1799

Hearing dates:

Conciliation conference held on 16 October 2025

Date of orders:

14 November 2025

Decision date:

14 November 2025

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act1979 (NSW), the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the development application, in the amount of $10,000 to be paid within 28 days of the date of this order.

(2) The appeal is upheld.

(3) Development Application No DA-2023/45 as amended for alterations and additions to the existing mixed-use development on land legally described as Lots A, B and C in Deposited Plan 440204 and known as 1015, 1017 and 1019 Botany Road, Mascot, NSW, 2020 is determined by the grant of development consent, subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 4.17, 8.15, 8.7

Land and Environment Court Act 1979 (NSW), s 34

Bayside Local Environmental Plan 2021, cll 2.2, 2.3, 2.6, 2.7, 4.3, 4.4, 5.10, 6.1, 6.2, 6.3, 6.8, 6.9

Environmental Planning and Assessment Regulation, 2021 (NSW), s 38

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, Pt 2.3, Div 5, Subdiv 2, s 2.48, Div 17, Subdiv 2, ss 2.119, 2.120

Texts Cited:

Botany Bay Development Control Plan 2013

Category:

Principal judgment

Parties:

Allan Francis Micallef (Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
S Griffiths (Solicitor) (Applicant)
P Brown (Solicitor) (Respondent)

Solicitors:
Bartier Perry Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2024/423224

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 NSW (EPA Act) against the refusal of development application DA-2023/45 (the DA) for alterations and additions to the existing mixed-use development on land legally described as Lots A, B and C in Deposited Plan 440204 also known as 1015, 1017 and 1019 Botany Road, Mascot, NSW, 2020 (the site).

2. The proposed development involves alterations and additions to the existing heritage listed buildings on the site to create a mixed-use development containing three commercial tenancies, each with apartment above and three detached outbuildings, each containing a single garage and media room above.

History of the DA

3. The DA was lodged with Bayside Council (the Respondent) on 27 February 2023. The DA was refused by Bayside Local Planning Panel on 14 May 2024.

4. A Review Application No S82-2024/3 (the Review Application) was lodged with the Respondent on 24 September 2024, with a number of amendments to the original DA. The Review Application was refused by Bayside Local Planning Panel on 12 November 2024.

5. On 14 November 2024, the Applicant filed an appeal in Class 1 of the Court’s jurisdiction, under s 8.7 of the EPA Act against the refusal of the DA by the Respondent. On 19 December 2024, the Respondent filed a Statement of Facts and Contentions (SOFAC) with the Court.

6. On 20 May 2025, the Court arranged a s 34 conciliation conference on site pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). The s 34 conciliation conference was adjourned to enable time for the Applicant to prepare amended and additional information in accordance with some parameters agreed between the parties.

7. The parties were not able to reach an agreement, and the s 34 conciliation conference was terminated by the Court on 26 June 2024. The matter was adjourned for a hearing on 16 and 17 October 2025.

The Hearing

8. The on-site view on 16 October 2025 was vacated, as the parties advised that they had reached a s 34 agreement on the proposed development, filed with amended plans with the Court on 8 October 2025.

9. The matter was adjourned to a s 34 conciliation conference which I conducted, commencing in the Court on 16 October 2025.

10. One objector appeared in Court to provide a verbal submission of concerns with the proposed development. The parties explained the changes made in the amended plans and how these changes would address the objector’s concerns.

The s 34 Conciliation Conference

11. At the s 34 conciliation conference on 16 October 2025, the parties advised that they had reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, based on the amended plans, as filed with the Court on 8 October 2025 along with a signed s 34 agreement with Annexure A (the amended DA). This decision involved the Court upholding the appeal and granting development consent to the amended DA subject to conditions.

12. The parties confirmed that the Respondent has delegated authority from the Bayside Local Planning Panel to enter into the s 34 agreement.

13. The s 34 agreement is based on an amended DA which includes amended architectural plans, additional heritage information and a schedule of conservation works, BASIX certificates, NatHERS certificates, additional acoustic information, additional contamination information and structural engineering documentation as filed with the Court on 8 October 2025.

14. The key amendments made to the architectural plans in the amended DA are as follows:

1. Alterations to the detailing of the shopfronts to the Botany Road façade, so that characterful elements will be reinstated to compliment the original fabric and heritage status of the row;

2. A reduction of the number of entries along the shopfronts to Botany Road;

3. Altered access arrangements and internal layouts, to facilitate façade amendments and the retention of more original heritage fabric;

4. Refinement of the detailing to the first floor level openings of the Botany Road façade;

5. Reduction of the amount of demolition, to retain a greater amount of the original heritage building fabric;

6. Reduction to the overall height of new structures;

7. Greater setback (from the Botany Road frontage) of the proposed second floor level, and a reduction of structures associated with the proposed second floor level, so as to reduce the visibility of it;

8. Refinement of the proposed roof form and southern side elevation of the proposed second floor level; and

9. Refinements to the dormer windows (to reduce overall bulk) and to the finishes of the garage doors (to provide more characterful elements) of the outbuildings.

15. The parties advise that the amended DA:

1. Does not fundamentally alter the proposal such that the proposal cannot be considered an amendment to the DA, or would otherwise require the lodgement of a new development application;

2. Remains appropriately described as alterations and additions to a mixed-use development; and

3. Satisfies all contentions of the Respondent’s SOFAC.

16. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites provided by the parties to the Court. An amended s 34 agreement was filed with the Court on 20 October 2025, with an updated amount of costs agreed by the parties pursuant to s 8.15(3) of the EPA Act.

17. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

18. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA.

19. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows.

Jurisdictional Matters

Community Participation - Environmental Planning and Assessment Act1979 (NSW)

20. The Respondent advised in the SOFAC that the original DA was advertised and notified in accordance with the provisions of the Botany Bay Development Control Plan 2013 (the DCP) from 15 March to 29 March 2023. Two submissions were received during the public notification period which raised concerns in relation to heritage impacts, overshadowing to neighbouring properties, height and privacy.

21. The parties advise that the Review Notification for the proposed development was undertaken from 2 October 2024 to 17 October 2024. Three submissions were received by the Respondent objecting to the Review proposal.

22. The Respondent, having considered the submissions, is satisfied that the impacts of the amended DA are acceptable. The Respondent also submits it is satisfied that the issues raised in the further submissions have been addressed to the extent necessary and reasonable and that they do not warrant refusal of the amended DA.

Owner’s consent

23. The parties advise that the DA was made with the written consent of the registered proprietors of the site.

Conditions

24. The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.

State Environmental Planning Policy (Resilience and Hazards) 2021

25. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated, and if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable after remediation) for the purpose for which the development is proposed to be carried out.

26. The parties advise that:

1. The DA and the Review Application were accompanied by a preliminary site investigation and the Applicant provided an addendum as part of the amended DA; and

2. The parties have considered the preliminary site investigation and addendum in relation to whether the site is contaminated and, on account of the site being historically used for non-contaminating purposes, and with no known history of potentially contaminating events, are satisfied that the site is suitable to accommodate the proposed development.

27. The Court is satisfied for the purposes of s 4.6 of the Resilience SEPP that the site is suitable for the proposed development.

State Environmental Planning Policy (Sustainable Buildings) 2022

28. In relation to the State Environmental Planning Policy (Sustainable Buildings) 2022, (the Sustainability SEPP), the parties advise that:

1. Pursuant to cl 4.2(1)(a) of the Sustainability SEPP, this Sustainability SEPP does not apply to the DA as the DA was lodged but not finally determined (as a result of the review by the Local Planning Panel and the current proceedings) before 1 October 2023;

2. The DA is subject to the predecessor – State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (the BASIX SEPP), and pursuant to this BASIX SEPP the proposed development is a BASIX development, containing a BASIX building; and

3. The DA was accompanied by a BASIX certificate and the Applicant has provided an amended BASIX certificate as part of the amended DA. The Respondent considers the amended DA to be satisfactory in this regard.

State Environmental Planning Policy (Transport and Infrastructure) 2021

29. The parties advise that a number of sections of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (the Infrastructure SEPP) apply to the proposed development.

30. Part 2.3, Div 5, Subdiv 2 of the Infrastructure SEPP applies as the proposed development involves development within 5 metres (m) of exposed overhead electricity power lines (s 2.48(1)(b)(iii) of the Infrastructure SEPP) and in this regard, the Respondent has:

1. Referred the DA to Ausgrid;

2. Received and considered Ausgrid’s response;

3. Included relevant conditions in the agreed conditions of consent; and

4. Satisfied the obligations pursuant to s 2.48(2) of the Infrastructure SEPP, enlivening the power to grant consent.

31. Part 2.3, Div 17, Subdiv 2 of the Infrastructure SEPP applies as the site has a frontage to a classified road (s 2.119 of the Infrastructure SEPP) and in this regard, the parties agree that:

1. Safe vehicular access to the site is proposed through the laneway to the rear of the site rather than from the classified road (s 2.119(2)(a) of the Infrastructure SEPP);

2. The proposed development will not affect safety, efficiency and the ongoing operation of the classified road in terms of design of vehicular access (from the rear), emissions (the proposed development will not generate smoke or dust, other than minor and typical of construction practices) or traffic frequency (as one parking space per lot is proposed as per existing conditions) (s 2.119(2)(b) of the Infrastructure SEPP);

3. The proposed development is not particularly sensitive to traffic noise and emissions, subject to further comments below at [32] (s 2119(2)(c) of the Infrastructure SEPP); and

4. The obligations pursuant to s 2.119 of the Infrastructure SEPP are satisfied, enlivening the power to grant consent.

32. Part 2.3, Div 17, Subdiv 2 of the Infrastructure SEPP applies to the site as the proposed development is for residential purposes, which the Respondent considers could be affected by road noise or vibration (s 2.120(1)(a) of the Infrastructure SEPP). In this regard, the parties advise that:

1. Have considered the Acoustic Report lodged with the DA and the Review Application to the Local Planning Panel and the addendum to it (referenced in the s 34 agreement); and

2. Are satisfied that, subject to conditions that have been included in the agreed conditions of consent, impacts of road noise and vibration on the proposed development will be mitigated to an appropriate extent.

Bayside Local Environmental Plan 2021

33. The Bayside Local Environmental Plan 2021 (the LEP) applies to the site and to the proposed development. The site is zoned E1 – Local Centre (E1 zone) pursuant to cl 2.2 of the LEP; and

1. The proposed development for alterations and additions to the existing mixed-use development on the site is permissible with consent within the E1 zone pursuant to cl 2.6 of the LEP;

2. I am satisfied that the proposed development is consistent with the objectives at cl 2.3 of the LEP for development within the zone in which the development is proposed to be carried out.

34. Clause 2.7 of the LEP provides that demolition is permissible with consent. The proposal development includes, and the amended DA seeks consent for, partial and targeted demolition of buildings on the site.

35. The site is subject to cl 4.3 of the LEP in relation to a maximum height of 14m as shown in the Height of Buildings Map in the LEP. The proposed development has a maximum building height of 9.36m above existing ground level and complies with the development standard.

36. Pursuant to cl 4.4 of the LEP, the site has a floor space ratio (FSR) of 2:1. The parties advise that the amended DA complies with cl 4.4 with the FSR ranging from 1.52:1 to 1.55:1 across the three lots that comprise the site.

37. Clause 5.10 of the LEP relates to heritage conservation. The parties advise that the site is listed as three local heritage items under the LEP and adjoins other items of local heritage items (to the northern and southern sides). The site is part of a wider row of seven shop top terraces fronting Botany Road. Pursuant to cl 5.10(2)(a), (b) and (e) of the LEP, the amended DA requires development consent.

38. The parties advise that they have considered the effect of the proposed development on the heritage significance of the site and adjoining heritage items. Based on the amended DA, which includes amended architectural plans and heritage information and the agreed conditions of consent, the parties are satisfied that consent can be granted to the amended DA.

39. In particular, the documentation for the amended DA now includes a Schedule of Conservation Works prepared by Weir Phillips Heritage, dated June 2025 to guide the redevelopment of the site.

40. Clause 6.1 of the LEP relates to Acid sulfate soils. On the Acid Sulfate Soils Map in the LEP, the site is classified as Class 5 acid sulphate soils land. The parties advise that the site is located within 500m of Class 3 acid sulfate soils land. As the amended DA does not involve works below 5m Australian Height Datum (AHD) or works that will lower the water table below 1m AHD on adjacent Class 1, 2, 3 or 4 land, the amended DA does not require consent under cl 6.1 of the LEP and an acid sulphate soils management plan is not required.

41. Clause 6.2 of the LEP relates to Earthworks. The amended DA includes minor excavations that are defined as earthworks under the LEP. Thus, pursuant to cl 6.2(3) of the LEP, the consent authority must consider the earthworks matters identified under cl 6.2(3)(a)-(h) to the grant of any development consent for earthworks. The parties advise that they have considered the matters of cl 6.2(3)(a)-(h) of the LEP and agree that they are suitably addressed by the amended DA and agreed conditions of consent.

42. Clause 6.3 of the LEP relates to Stormwater management. development consent must not be granted unless the consent authority is satisfied of the stormwater management matters identified under cl 6.3(2)(a)-(e) of the LEP. The parties advise that having considered such matters, the parties are satisfied that the amended DA is acceptable subject to the agreed conditions of consent.

43. Clause 6.8 of the LEP relates to Development in areas subject to aircraft noise. The parties advise that the site is located within the Australian Noise Exposure Forecast contour and that the consent authority must consider matters identified under cl 6.8(3)(a)-(c) of the LEP. The parties submit that having considered such matters and an acoustic report submitted with the DA, they are satisfied that the amended DA is acceptable subject to the agreed conditions of consent.

44. Clause 6.9 of the LEP relates to Active street frontages. As the site is land identified as “active street frontage” on the Active Street Frontages Map of the LEP, cl 6.9 of the LEP applies. The parties advise that they are satisfied that the amended DA provides an active street frontage, noting that:

1. The architectural plans generally label the ground floor level of the building facing the street as “shops”; and

2. The agreed conditions of consent include Condition number 5 requiring a “separate application be submitted for the use of the three ground floor commercial tenancies” (under which uses that provide an active street frontage for each of the ground floor tenancies can be required).

Botany Bay Development Control Plan 2013

45. The parties advise that they have considered the amended DA with reference to the applicable parts of the DCP and are satisfied that the amended DA is an acceptable response to the applicable parts of the DCP and that consent can be granted subject to the agreed conditions of consent.

Conclusion

46. The parties agree that the amended DA can be approved taking into consideration the matters in ss 4.15(1)(b) – (e) of the EPA Act.

47. Having considered the advice of the parties provided above at [20]-[45], I am satisfied that:

1. The Applicant’s amended DA can be approved having regard to the matters in s 4.15(1)(b)-(e) of the EPA Act;

2. The jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and

1. Approval of the proposed development is in the public interest.

48. Further, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

49. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

50. The Court notes:

1. That Bayside Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), has approved the application for an amendment to development application DA-2023/45 made on 8 October 2025 to rely on the additional and amended materials specified below:

1. Architectural plans (Issue F) prepared by Katris Architects, dated 24 June 2025:

(a) Cover Page and Drawing Schedule

(b) A000B – No. 1015-Compliance Info/Table

(c) A000C – No. 1017-Compliance Info/Table

(d) A000D – No. 1019-Compliance Info/Table

(e) A001 – Existing Floor Plans 1 of 2

(f) A002 – Existing Floor Plans 2 of 2

(g) A003 – Existing Elevations-East & West

(h) A004 – Existing Elevations-North & South

(i) A005 – Site Plan

(j) A006 – Proposed Ground Floor/Site Plan

(k) A007 – Proposed Level 1 & Level 2

(l) A008 – Proposed Roof Plan

(m) A009 – Proposed Section

(n) A010 – Proposed Sections

(o) A011 – Proposed West Elevation

(p) A012 – Proposed Internal East & West Elevation

(q) A013 – Proposed South Elevation

(r) A014 – Materials & Finishes

(s) A015 – Materials & Finishes

(t) A016 – Materials & Finishes

(u) A025 – Area Calculations

(v) A026 – Demolition Plan

(w) A028 – Proposed West Elevation

(x) A029 – Proposed Perspective Views

(y) A030 – Proposed Perspective Views

(z) A031 – Sight Line Sections

(aa) A032 – Proposed Perspective Views

(ab) A033 – Proposed Perspective Views

(ac) A034 – Proposed Perspective Views

2. BASIX certificates prepared by Certified Energy, dated 26 June 2025:

(a) Reference number 1365063S_03

(b) Reference number 1365064S_03

(c) Reference number 1365065S_03

3. NatHERS certificates prepared by Certified Energy, dated 26 June 2025:

(a) Reference number 0009739061-02

(b) Reference number 0009739079-02

(c) Reference number 0009739087-02

4. Acoustic Response Letter reference number TN096-01F03 prepared by Renzo Tonin and Associates, dated 12 May 2025

5. Contamination Response prepared by Pacific Environmental, dated 23 April 2025

6. Structural Engineering Report reference number Y115_SR03 prepared by SPAD Consulting Structural and Civil Engineers, dated 27 August 2025

7. Structural plans (Revision A) prepared by SPAD Consulting Structural and Civil Engineers, dated 29 August 2025:

(a) S01.00 – Structural Notes – Sheet 1

(b) S01.01 – Structural Notes – Sheet 2

(c) S01.02 – Structural Notes – Sheet 3

(d) S01.03 – Structural Notes – Sheet 4

(e) S02.00 – Bracing Plan

(f) S02.01 – Bracing Details

(g) S03.00 – Ground Floor Plan

(h) S03.01 – Ground Floor Details

8. Schedule of Conservation Works reference J6894 prepared by Weir Phillips Heritage, dated June 2025

9. Submission on existing chimney prepared by Weir Phillips Heritage, dated June 2025

2. The Applicant provided the Court with the abovementioned amended materials (with the consent of the Respondent) on 8 October 2025.

Orders

51. The Court orders:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the development application, in the amount of $10,000, such amount is to be paid within 28 days of the date of this order.

2. The appeal is upheld.

3. Development Application No DA-2023/45 as amended for alterations and additions to the existing mixed-use development on land legally described as Lots A, B and C in Deposited Plan 440204 and known as 1015, 1017 and 1019 Botany Road, Mascot, NSW, 2020 is determined by the grant of development consent, subject to the conditions at Annexure A.

G Kullen

Acting Commissioner of the Court

Annexure A (461 KB, pdf)

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Decision last updated: 14 November 2025